Welcome to Cacciola Family Law
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Cacciola Family Law
Cacciola Family Law represents and advises clients on all family law and divorce issues including property division, support and child related matters.
Going through separation and divorce is one of the most challenging and emotionally fraught times that a person will experience in their life. Fortunately, Cacciola Family Law has:
- The expertise to lead clients through the legal process;
- The drive to achieve favorable results and find sensible solutions;
- The knowledge to identify each client’s unique needs and goals; and
- The compassion to resolve matters in a cost-effective and efficient manner.
There are many ways to resolve a family law dispute, including negotiation, mediation, arbitration, and litigation. The process that is chosen will be based on the client’s wishes as well as the necessities of the case. The level of complexity and conflict varies for each client, but the legal strategy used in each case is customized to each client’s unique financial, emotional and legal needs.
Family Law disputes are unique in that parties involved in these disputes usually must continue to be parts of each other’s lives in varying ways, especially if children are involved. Taking this into consideration, Cacciola Family Law takes a client-focused approach to resolving disputes.
FULL SCOPE OF
SERVICES
Negotiating and Preparing Domestic Contracts
Cohabitation Agreements, Marriage Contracts, Parenting Plans, and Separation Agreements
Litigation
Commencing proceedings as well as defending a party once proceedings are commenced by the opposing side.
Parenting: Decision-Making and Residency
First instance or at the time of review or variation. Including mobility rights and
Grandparent's Access Rights
Mediation or Mediation/Arbitration
Professional Services
Commencing \ Defending Motions to Change
To vary court orders or agreements filed with the Court
Resolving Child Support
First instance and at the time of review or variation, including income determination issues
Resolving Property Division
Including taking into consideration business valuation issues, tax issues, and trust issues
Resolving Spousal Support
First instance and at the time of review or variation, including income determination issues
WHY CHOOSE US
We are dedicated to exceeding our customers' expectations.
OUR MISSION
Our Mission is to provide our clients with knowledgeable, in-depth, legal guidance and service in a timely manner.
WHAT YOU GET
We take our time to listen to and understand our clients’ concerns .
Cacciola Family Law takes a client-focused approach to resolving disputes.
Who gets to stay in the house after separation in Ontario?
By Giovanna Cacciola
The matrimonial home is a special piece of real estate for recently separated spouses.
Quite apart from the emotional ties to the home, it also tends to be the couple’s single most valuable piece of property, so it’s no surprise when one or both want to keep living there after the end of their relationship.
For parents in an historically hot property market like Toronto’s, there’s also a practical aspect to the desire to stay in place: the matrimonial home is usually the only realistic chance they have of remaining in the same neighbourhood or school boundary area where their kids have settled.
So, how does a separated spouse get to stay in the matrimonial home? It’s more complicated than it sounds, because of provisions in Ontario’s Family Law Act, which reflect the special status of the matrimonial home.
Regardless of who is listed on title, both spouses are granted the right to possession of their matrimonial home until they reach an agreement or a court rules otherwise. That means neither party can force the other out, and no married spouse can sell or mortgage the property without the other’s consent.
Exclusive possession
The first way a spouse may be able to remain in the matrimonial home is when a judge orders “exclusive possession” in favour of one party, regardless of who holds title to the property. However, this is a relatively rare event, reserved for only certain cases.
Because forcing one spouse to leave the matrimonial home is a serious remedy, it’s not enough for someone to claim that the inconvenience or irritation of living under the same roof as their ex is too much to bear.
Exclusive possession is most often granted in cases involving domestic violence, where the judge finds it is in the best interests of the children for the abusive spouse to leave the home, or where the arguments and tension between the spouses is having a negative effect on the children
Negotiated departure
The intricacies of Ontario’s Family Law Act mean that a judge cannot order one titled spouse to sell their share of the matrimonial home to their separated spouse. The most the court can do is force the sale of a jointly owned property under the province’s Partition Act and split the proceeds between them.
As a result, when one or both parties want to keep the matrimonial home, the onus is on them to reach an agreement through negotiation or mediation. A strong desire to stay in the home can shift the balance of negotiations, sometimes leading to concessions in other parts of the settlement.
Spousal buyout
If the pair can reach an agreement for one to buy out the other, the next challenge may be financial.
Setting a fair price and determining each party’s equity may require valuations from real estate agents or even listing the property on the open market.
There is also the issue of the whether or not the spouse can afford to take over the mortgage on only one income. The effect of the receipt or payment of spousal or child support will also affect this and sometimes the financial institution will want to see a Separation Agreement that addresses the support obligations.
However, buyers should consult with a mortgage broker or other financial experts before the purchase to ensure they fully understand the debt load they are taking on and their ability to repay it.
Decisions about the home you’ve shared are never just financial; they’re deeply personal. If you’re separating and unsure of your options, our family lawyers can help you make informed choices that protect your future.
No home-field advantage for Ontario parents in non-Hague child abduction cases
Parents challenging the return of a child to non-Hague Convention jurisdictions on the basis of country-specific conditions and legal traditions may not find much sympathy from the bench following a series of recent court decisions.
Signatories to the Hague Convention on the Civil Aspects of International Child Abduction — affirm that custody/decision-making cases in their country will be decided on the basis of the child’s best interests.
Under s. 23 of Ontario’s Children’s Law Reform Act (CLRA), parents who have removed a child from a non-Hague country may ask a court in the province to assume jurisdiction and decide custody/decision-making and access/residency issues where their return would result in “serious harm” to the child, on a balance of probabilities.
Canada’s legal system enjoys a stellar reputation both at home and abroad, so it’s understandable why many non-lawyer parents expect some home-field advantage in s. 23 cases, especially in those centred around foreign jurisdictions with less progressive approaches to gender or sexuality.
However, in its recent decision in F. v. N. [2022] S.C.J. No. 51, the Supreme Court of Canada killed off the paternalistic notion that Canadian courts always know best when it comes to custody issues.
In June 2020, the mother in the case left her home in Dubai with her two young children, before informing the father that she intended to stay in Ontario rather than return to the United Arab Emirates (UAE), where she had no independent residency status.
Part of her case for Ontario to take jurisdiction under s. 23 rested on arguments that UAE law allocates custody and guardianship on the basis of gender — circumstances she claimed were incompatible with Ontario law.
Although the nation’s top court split 5-4 when it came to the result — upholding the trial judge’s order to return the children to Dubai — all nine judges on the panel agreed with Justice Nicholas Kasirer’s discussion of the legal principles at play, where he wrote that the CLRA does not prevent children from being returned to foreign jurisdictions where the law and rights of parents may differ from Ontario, as long as the “ultimate question of custody is determined on the basis of the best interests of the child.”
While he found it conceivable that foreign laws could be “so profoundly irreconcilable” with Ontario’s that remitting the matter to that jurisdiction would give rise to “serious harm” under the CLRA, Justice Kasirer quoted a renowned international family law expert when he wrote: “[I]t is appropriate for a court seized of a return application to recognize that it does not have a ‘monopoly in knowing what is best for children and certainly not in knowing what is best for children who have been growing up in non‑Western cultures.’”
Ultimately, Justice Kasirer ruled that the trial judge had properly considered the impact of UAE laws as he satisfied himself — based on expert evidence — that the country’s rules mandating the allocation of parental responsibilities along gender lines were not automatic, and that UAE judges would decide custody and access issues based on the best interests of the child.
F. v. N. is not the only recent s. 23 case to feature a failed challenge based in part on the laws of the country of habitual residence. In Ajayi v. Ajayi [2022] O.J. No. 4115, a three-judge panel of the Divisional Court upheld the trial judge’s decision to order the return of three children to Nigeria after their mother fled with them to Ottawa.
The mother in the case argued that her identification as a member of the LGBTQ community in family law documents filed by the father could attract negative consequences to her in the Nigerian courts, calling an expert to opine on the level of discrimination faced by members of the community in a country where “cross-dressing” (I am using the term as it is used in the case) is criminalized, same-sex marriage is prohibited, and certain homosexual acts are punishable by prison sentences.
As both cases demonstrate, parents face a high bar to meet the “serious harm” test under s. 23 of the CLRA, and judges’ determinations are incredibly fact specific.
In F. v. N., the split in the Supreme Court panel emerged over the likelihood of harm the children would suffer if separated from their mother, who claimed she would not follow them back to Dubai. While the majority found no reason to interfere with the trial judge’s conclusion that the children would not suffer serious harm — whether or not the mother came with them — the minority found that he had seriously misapprehended the evidence on this point.
Any concern that the mother’s claim for serious harm was self-engineered was unfounded, considering the reasonable and legitimate reasons she had for refusing to return — including her precarious residency status in the UAE — the minority added.
In Ajayi, the case could be said to have boiled down to a battle of experts, and the Divisional Court saw no error in the trial judge’s interpretation of Nigerian law or her preference for the father’s expert, whose evidence she found was “more specific to family law” compared with the “more general evidence regarding human rights law and their abuses” given by the mother’s expert.
In an increasingly mobile world, international custody disputes are likely to continue arising in greater numbers before Ontario courts. The more parents and their counsel can focus on the individual circumstances of the child, as opposed to conditions in the country where they would be returned, the greater their chance of success on a s. 23 application.
In cases involving older children, their own views could come into play, such as in the case of Ojeikere v. Ojeikere [2018] O.J. No. 2041, which was decided in favour of the Ontario-based mother.
She succeeded in having Ontario take jurisdiction over the custody and access of the three children she refused to return to Nigeria after the Court of Appeal for Ontario allowed the admission of the teenagers’ interviews with the Office of the Children’s Lawyer as evidence, alleging their father physically disciplined them using objects, as well as by spanking.
For each of the three-judge panel, the risk of physical mistreatment raised the threat of suffering to the children beyond the “serious harm threshold” — either on its own, or in combination with the risk of psychological harm associated with a return to Nigeria.
By Giovanna Cacciola
Death is not usually a favourite topic for splitting spouses, but it’s a crucial conversation when negotiating a separation agreement.
That’s because life insurance is the preferred tool for family lawyers seeking to secure both child and spousal support payments, so that the payor’s obligations can continue to be met in the event of their premature death.
Support security basics
Ontario’s Family Law Act deals with security for support payments in section 34, which empowers judges to require a spouse “who has a policy of life insurance…designate the other spouse or a child as the beneficiary.”
Although the wording of the legislation makes it sound as though the payor spouse needs to have life insurance already in place before the order to change the beneficiary designation can be made, the Ontario Court of Appeal confirmed in a landmark 2014 decision that in the context of its broader provisions, s. 34 also gives courts the power to order a spouse to obtain a fresh insurance policy.
The precise terms of the policy and its level of coverage will depend on several factors, including the amount of support owing and the cost of the premiums, as well as the age and health of both the support payor and recipients.
Beneficiaries
A key decision for former couples is who to name as a life insurance policy beneficiary. In many cases, the recipient spouse makes the most sense, although it is important for people to know that the proceeds could be subject to claims by creditors of the deceased’s estate.
Some parents prefer to name their minor children as beneficiaries, but this can create its own difficulties if they ever have to make a claim, since the proceeds could end up being frozen until the child turns 18 or paid out to a court-appointed guardian — typically the surviving parent.
In other cases, the parties may agree to set up a trust to receive the funds, so that the money can be invested or used for the child’s benefit while they are young and eventually distributed in whole or via installments when they become an adult.
Insurability
Things can get more complicated when the payor spouse has trouble qualifying for life insurance, or the premiums are unreasonably expensive, often because of the person’s advanced age, known health problems or some combination of the two.
In these circumstances, the parties may come to their own arrangements to secure support. For example, they may decide to set aside certain assets or investment accounts that could be used to satisfy any shortfall caused by the payor’s untimely death.
In cases where insurance was not (or could not be) obtained for whatever reason, the surviving spouse or children of a payor may still be able to make a claim for support against the deceased’s estate, but this can be a time-consuming and expensive process, assuming there are enough assets to cover the payor’s obligations.
Material change clauses
While death could be considered the ultimate change in life circumstances, it’s not the only way that a payor’s ability to cover their child and spousal support obligations can be transformed.
Typically, courts will only entertain changes to child or spousal support orders if there has been a “material change in circumstances” since the original order. For support payors, another type of security could come in the form of material change clauses negotiated as part of their separation agreement, where the parties agree that certain specified events will trigger a review or recalculation of the support owed by one to the other.
For example, provisions can be drafted to include a review of support once the payor loses their job or retires. Alternatively, the trigger could be a change in the support recipient’s circumstances, such as their remarriage or entry into a common-law relationship.
Still, there are no guarantees that a judge reviewing a request to alter support obligations will agree that any amendments are required in any specific case. Their determination will be based on various factors, including the terms of the separation agreement, the incomes of both parties and their expectations at the time of the separation.
Please reach out if you are going through a separation or divorce and need guidance to navigate the legal complexities and protect your family’s future. Our team is here to listen and support you every step of the way.
By Giovanna Cacciola
You don’t need to be a family lawyer to recognize that the nuclear family is becoming a thing of the past in Canada.
In my personal and professional lives, I see families successfully adapting and thriving within non-traditional arrangements, bringing a heartening sense of optimism and resilience.
But in my line of work, it’s also impossible to ignore the flip side of the coin. These evolving dynamics often bring an additional layer of emotional and practical complexity that can create unique challenges for members of the family unit, especially in the context of a relationship breakdown.
Let’s look at a couple of the demographic trends that stand out and some of the issues they are bringing up in my family law practice in Ontario.
Stepfamilies on the rise
As the societal stigma traditionally associated with divorce has eroded, more people are finding love the second or third time around, welcoming children from previous relationships into unions with new spouses — whether married or common-law.
According to Statistics Canada's most recent census in 2021, more than 550,000 children currently live in a stepfamily, which the agency defines as a couple with at least one child who was born or adopted before the start of their current relationship.
In turn, these stepfamilies account for around 12.6 per cent of Canada’s 3.7 million families living together with children — a figure that has grown 17 per cent since 1995.
Every stepfamily family is unique, but in many cases, the bonds that develop between stepsiblings and stepparents are indistinguishable from those with biological ties. Canada’s family law legislation accounts for this in those unfortunate circumstances when the couple at the head of a blended family separates.
For example, under the Federal Divorce Act, stepparents may be treated similarly to biological parents when it comes to their rights and obligations regarding child support and parenting time in cases where the person “stands in the place of a parent” to the stepchild.
Ontario’s Family Law Act contains similar provisions that lay the foundation for possible claims by or against stepparents who were not married, but demonstrated a “settled intention” to treat a child as part of their family.
As ever, judges have a great deal of discretion when interpreting legislation and determining what is in the best interests of a stepchild, which means that results will vary depending on the specific facts of your case.
Multigenerational households
Multigenerational living can lead to multigenerational family law litigation when a relationship breaks down.
In the most recent census, Statistics Canada reported that the multigenerational home — those containing at least three generations of the same family — is the fastest-growing household type in the country. Around 2.4 million Canadians live this way — a 50 per cent increase since 2001.
The surge has been attributed partly to Canada’s growing immigrant and Indigenous populations, where multigenerational living is most common. However, with the recent spike in the cost of living and soaring home prices, the trend will likely continue in the coming years.
When relations are good, the financial and social benefits of multigenerational living are clear. Everyone stands to benefit when grandparents can help with childcare and develop their relationships with grandchildren while saving the parents on childcare expenses.
However, during marital rough patches, tensions can be easily magnified by the reduced level of privacy that comes with living in such close quarters with parents or in-laws.
After a separation, it’s not unusual to see grandparents dragged into family law litigation — often in disputes revolving around gifts, loans or other financial contributions made to the couple during the marriage. Without proper documentation, opposing characterizations of these transactions could significantly affect the final property division calculations.
Grandparent matters
However, the impact of elder family members extends far beyond property matters. Recent amendments to Ontario's Children's Law Reform Act empower grandparents to initiate court applications for decision-making authority or visitation, offering a legal avenue to be involved in their grandchildren's lives.
The changes also require judges to consider a child’s emotional ties to their grandparents when deciding what is in their best interests, providing a more comprehensive and nuanced approach to family law cases.
According to 2021 census data, nine per cent of children aged 14 and under (517,000) lived with at least one grandparent, up from 3.3 per cent in 2001. More than 9 in 10 of these children are living in multigenerational households.
If you are struggling with a family separation and would like legal advice, contact our experienced team of family lawyers. We would be happy to help you.
By Giovanna Cacciola
Pets are more than just property, and it’s time Ontario’s Family Law Act said so.
As one of many pet lovers in our office, it always pains me to explain to clients worried about the fate of their pets following a separation that when it comes to Ontario family law, their cats and dogs are considered personal property.
I think it’s time to move on from this idea that pets should be lumped in with items such as the family car, sofas and other furniture. The new family law legislation out of B.C. could provide legislators in this province with a roadmap to a legal regime that better reflects societal attitudes towards our animals and the bonds that family members share with their pets.
The state of animal law in Canada
Judges across the country have traditionally taken a dim view of pet custody disputes. The Court of Appeal for Ontario is no different, as you can tell from its 2005 judgment in Warnica v. Gering that still sets the standard in the area. The three-judge panel in the case upheld a motion judge’s conclusion that a request for a custody order concerning a dog should be dismissed because it was “a waste of time, a nuisance or an abuse of the court’s process.”
As recently as 2016, a Saskatchewan judge issued a similar rejection of the custody approach when deciding the fate of the family dogs in a case known as Henerson v. Henderson. Comparing the pets to the family butter knives, the judge wrote that it would be “wasteful” to consume “scarce judicial resources with this matter.”
“After all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned,” he
added.
In recent years, judges in several jurisdictions have adopted a slightly more nuanced approach to the pet’s living arrangements following a separation, albeit one still premised on the idea that the pet is the personal property of one or both parties.
In 2018, Newfoundland and Labrador Appeal Court Justice Lois Hoegg issued a dissenting opinion in Baker v Harmina, favouring a woman’s argument that she was joint owner of a dog on the basis that she had been its primary caregiver, even though it was her former boyfriend who had arranged and paid for the dog’s purchase, as well as most of the expenses associated with the pet.
In 2021, an Ontario judge got in on the act, declaring the couple in Coates v. Dickson joint owners of two dogs based on a “broader, more contemporary approach” that takes into consideration several factors relating to each person’s relationship with the pets, rather than a simple assessment of who paid for them.
B.C.’s fresh take on pets in divorce
In B.C., legislators have made a cleaner break from the traditional “pets-as-property” approach to pet custody in recent amendments to the province’s Family Law Act. The updated legislation means pets are no longer considered property, but reclassified as “companion animals.”
Judges hearing divorce and separation matters under the amended Act must assess the pets’ best interest when deciding where it will live, taking into account the previous pattern of care for the animal, as well as its relationship with other members of the family, such as any children of the couple.
Time for Ontario to catch up
I understand courts’ unwillingness to add another layer of complexity to family law disputes, especially in our already over-burdened justice system. Still, I think the current state of the law in Ontario is out of step with the views of most people living with animals, who tend to view their pets as part of the family.
As the law continues to evolve in this area, I would like to see Ontario following B.C.’s lead by scrapping the outdated notion that pets are nothing more than property.
Legislators in this province may even wish to consider filling in gaps identified by animal advocates in the B.C. legislation, which does not cover guide dogs, service dogs or farm animals. In addition, B.C.’s updated law limits the court’s powers on shared ownership, allowing judges only to uphold previously agreed shared or exclusive ownership agreements, but not to order new ones.
If you are going through a separation and divorce with pets in the mix and would like legal advice on your situation, please reach out to schedule a consultation and we can go over all the issues together.
By Giovanna Cacciola
Where your children spend most of their time is only one part of the story for freshly separated parents.
In addition to deciding the child’s day-to-day living arrangements, the court must also determine who has the authority to make decisions about the child’s wellbeing.
Understanding the difference between these two critical issues is something many parents struggle with.
The end of “custody” and “access”
Some of the confusion stems from a landmark reform of the Divorce Act. In 2018, Bill C-78 — the first major update to federal family laws in more than two decades — replaced traditional terms including “custody” and “access,” with the more child-focused “decision-making responsibility” and “parenting time.”
Parenting time is the more straightforward of the two. It refers to the time a child spends in the care of each parent.
When the issue is contested, judges generally avoid awarding no parenting time to a parent. Even in cases involving allegations of abuse, courts are reluctant to sever a willing parent’s relationship with their child, though that contact may be limited or supervised. The ultimate test is what residential schedule is in the children’s best interests.
To determine a residential schedule in the child’s best interests, judges consider a range of factors, including the child’s age and stage of development, the parent’s ability to care and meet the child’s needs, the suitability of each parent’s home and its proximity to the child’s school.
Judges often consult guidelines from the Association of Family and Conciliation Courts, although they are not bound to follow them and adherence varies depending on the court.
What does decision-making responsibility include?
Broadly, decision-making responsibility covers issues related to the child’s wellbeing, including decisions about:
- Health
- Education
- Culture, language, religion and spirituality
- Significant extracurricular activities.
Disagreements vary from family to family, but one common scenario involves parents with different religious practices. Courts are generally reluctant to allow one parent to impose religious observance beyond their household, preferring to leave the ultimate choice to the child, where possible and when they are of age to make the election themselves.
Health issues typically aren’t a flashpoint unless the child develops a serious condition after separation. During the COVID-19 pandemic, however, disputes increased due to differing views on vaccination. Decision-making responsibility typically is less contentious in emergency situations as parents’ decisions would generally be guided by the advice of emergency medical care professionals.
Health and education sometimes overlap, such as when a child has a physical or learning disability and the parents disagree on a school’s ability to accommodate them or whether or not there should be a psychoeducational assessment performed to determine a child’s needs. Other disputes often centre on whether the child should attend a public or private school.
Sole or joint decision-making responsibility?
Just because you share parenting time with your former spouse, it doesn’t necessarily mean you will share decision-making responsibility.
In a recent case, Ontario Superior Court Justice Deborah Chappel outlined five options available to judges:
- Sole decision-making responsibility in all areas to one parent.
- Joint decision-making responsibility in all areas to both parents.
- Joint responsibility in some areas, with sole authority in others assigned to one parent.
- Sole decision-making in specified areas, with no joint authority or consultation at all.
- Joint decision-making responsibility, with one parent given final say in the event of a disagreement.
Exceptions to the rule
It’s not uncommon for a judge to award sole decision-making responsibility to one parent, especially when the parties have difficulty communicating or cooperating. However, courts are less likely to grant sole authority to a parent who behaves unreasonably or refuses to collaborate.
In the case above, Justice Chappel concluded that the father should have sole decision-making responsibility, finding the mother primarily responsible for the ongoing conflict. Granting her greater authority, the judge wrote, would give her “further opportunities to engage in psychologically abusive and coercively controlling conduct.”
Regardless of the arrangement, parents with decision-making responsibility are expected to consider and follow the advice of medical and other professionals regarding their child’s wellbeing.
Please reach out if you are going through a separation or divorce and need guidance to navigate the legal complexities and protect your family’s future. Our team is here to listen and support you every step of the way.